You Have Wheelchair Access To Your Showroom: Must Your Web site Accomodate Blind Person?

August 2006, Auto Dealer Today - WebXclusive

by Thomas B. Hudson, Esq. - Also by this author

Blind people occasionally buy cars, even if the law requires that the cars must be operated by others. Can blind people access your web site? From what I read, software exists that makes such a thing possible. If you aren’t employing such software on your Web site, are you violating the Americans with Disabilities Act?

In a recent case, the U.S. District Court for the Southern District of Florida said “no.” The court dismissed a claim that Southwest Airlines' Internet Web site, upon which potential Southwest customers could shop for tickets, was not accessible to disabled people, in violation of the ADA.

The plaintiffs who sued Southwest are a non-profit advocacy organization for disabled people and a blind individual. District Court Judge Patricia Seitz concluded that because the plaintiffs could not demonstrate that Southwest's Internet Web site impeded their access to a specific, physical, concrete space of public accommodation, and because the plaintiffs failed to establish a “nexus” (connection) between the Web site and a physical, concrete space of public accommodation, they could not state a claim for relief under Title III of the ADA.

The ADA has been around since 1990. Congress passed the ADA, finding that 43 million Americans had one or more mental or physical disabilities. Despite these numbers, the ADA hasn’t been the subject of much litigation, and most of the cases that have been brought have been brought in the employment context. I can recall no reported cases in the field of auto finance and leasing dealing with the ADA. This is despite the rich potential for such cases dealing with, for example, vehicles modified for operation by disabled persons.

This case involves an airline as a defendant. To what extent should its holding be a comfort to car dealers, who, almost certainly, have not taken the steps necessary to make their Web site accessible to blind persons?

Short answer? Some comfort, but more cases will be brought before we’ve heard the end of this issue. Also, we may not have heard the final word with respect to this particular case if the plaintiffs decide to appeal Judge Seitz’s opinion.

Let’s look a little more closely at the details of the opinion. That’s where the mischief usually lurks.

The court in this case found, first, that Southwest’s Web site was located in cyberspace, and thus, in no particular place. She then noted that the ADA’s list of sites to which it applied were all concrete, physical places, and concluded that the ADA didn’t intend to regulate any places other than the kinds listed.

It’s the second part of the court’s ruling that will provide grist for the mills of the plaintiffs’ lawyers – that business about the plaintiffs’ failure to establish a “nexus” (connection) between the Web site and a physical, concrete space of public accommodation, illustrated, in the court’s words, by the examples of a ticket counter or a travel agency. A plaintiffs’ lawyer will certainly use the court’s illustrative example to say that a dealer’s web site has a connection to the dealership, which is, the argument will go, a physical, concrete space of public accommodation.

Keep an eye on this one – it has the potential to create a couple of cottage industries, one for the software developers and another for plaintiffs’ lawyers.

Access Now, Inc. v. Southwest Airlines Co., 2002 WL 31360397 (S.D. Fla. Oct. 18, 2002)

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